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In re Marriage of Brockington

Supreme Court of Montana

September 25, 2018

IN RE THE MARRIAGE OF: DARIN BROCKINGTON, Petitioner and Appellee, and DEBORAH BROCKINGTON, n/k/a DEBORAH BROWN, Respondent and Appellant.

          ORDER

         By notice of appeal filed June 22, 2018, Appellant Deborah Brown (Deborah) filed a notice of her intent to appeal a "final judgment or order" of the Montana Eleventh Judicial District Court, Flathead County, filed in the underlying cause on May 22, 2018. In substance, the District Court's judgment of May 22, 2018, is no more than a judgment determining the amount of an award of attorney fees and costs adjudicated under its prior findings of fact, conclusions of law, and judgment of contempt against Deborah, dated August 4, 2016, and filed August 5, 2016. The ancillary proceeding to determine the amount of the previously adjudicated contempt sanctions award followed our opinion in the matter of In re Marriage of Brockington & Brown, 2017 MT 92, ¶ 36, 387 Mont. 260, 400 P.3d 205, wherein we affirmed the District Court's underlying amended parenting plan judgment and dismissed Deborah's attempted direct appeal of the court's contempt judgment as a premature appeal of an interlocutory order precluded by M. R. App. P. 4(1)(a). On the contempt appeal dismissal, we "conclude[d] that Deborah has the right to separately appeal the order of contempt pursuant to" Kuzara v. Kuzara, 211 Mont. 43, 48, 682 P.2d 1371, 1374 (1984) (reversing parenting plan judgment but denying application for writ of certiorari review of separate contempt order as a civil cause "entirely independent" of the underlying parenting plan judgment from which it arose), and M. R. App. P. 6(3)(j). Brockington, ¶ 35. Through counsel, Appellee Darin Brockington (Darin), filed a motion to dismiss Deborah's second attempted appeal and associated award of attorney's fees and costs. Through counsel, Deborah objects to dismissal of her appeal and to imposition of sanctions, asserting that her appeal is proper pursuant to M. R. App. P. 6(3)(j).

         Contempt orders are generally not subject to review on direct appeal. Section 3-1-523(1), MCA; M. R. App. 6(1). However, as a narrow exception to the rule, contempt judgments issued in family law proceedings are subject to review by direct appeal "only when the judgment or order appealed from includes an ancillary order that affects the substantial rights of the parties involved." Section 3-1-523(2), MCA; M. R. App. P. 6(3)(j). This limited exception does not permit an appeal from a "lone contempt order." Lee v. Lee, 2000 MT 67, ¶37, 299 Mont. 78, 996 P.2d 389. Having previously determined "that Deborah has the right to separately appeal the order of contempt pursuant to Kuzara and M. R. App. P. 6(3)(j)," we conclude that the District Court's judgment of contempt is subject to review on direct appeal as filed pursuant to Brockington, ¶ 35, and that sanctions for filing a frivolous appeal under M. R. App. P. 19(5) are not warranted in this case.

         Also pending before the Court is Deborah's Motion for Relief from District Court Order, filed through counsel on September 19, 2018. Deborah requests that her "bond on appeal be increased as requested by Darin, and that a stay of execution be imposed[.]" Through counsel, Darin asserts that Deborah's motion is untimely, that the District Court properly dissolved the stay pursuant to M. R. App. R. 24(1), and that he is entitled to reasonable attorney's fees and costs.

         M. R. App. P. 24(1) provides that "[t]he failure of the party filing the bond or undertaking ... to file a response to the objection [within 20 days after the service of notice of any objection], shall dissolve any stay preventing the execution of the judgment or order from which the party filed the appeal." M. R. App. P. 22(2) further provides that, following the granting or denial of a motion for stay filed with the district court, "a motion for relief from the district court order may be filed in the supreme court within 11 days of the date of entry of the district court order." M. R. App. P. 22(2)(a).

         On July 27, 2018, Darin filed his response in opposition to Deborah's posted bond seeking to increase the amount of the bond. Deborah failed to timely file a response to Darin's objection as required by M. R. App. P. 24(1). Receiving no response to Darin's objection, the District Court issued an order on September 7, 2018, "dissolving" the requested stay of execution of judgment after Deborah failed to respond to Darin's objection pursuant to M. R. App. P. 24(1).

         Compounding matters, in disregard of M. R. App. P. 22(2), Deborah untimely filed her present motion to this Court 12 days after entry of the District Court's September 7, 2018, order. Deborah has further neither shown any compelling justification for her patent disregard of M. R. App. P. 24(1) and 22(2). Deborah has thus waived her opportunities under M. R. App. P. 24(1) and 22(2) to obtain or maintain a stay of execution on a revised bond or undertaking and to seek relief from this Court on the adverse District Court determination thereon. We decline to address Darin's request for sanctions related to Deborah's motion for relief.

         Consequently, IT IS ORDERED that:

1. Darin's Motion to Dismiss and for an Award of Attorney's Fees and Costs is DENIED.
2. Deborah's Motion for Relief from District Court Order is DENIED.

         The Clerk is directed to provide a copy of this Order to ...


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